Family Law

Praise For A Fertility Fraud Bill: Because Sperm-Switching Is Arguably Legal Right Now

Fertility fraud will neither be tolerated nor allowed to slip through the legal cracks any longer.

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Indiana State Senators Roderick Bray and Michael Delph have proposed Senate Bill 239 in order to help stop an all too familiar kind of fraud in the fertility world. The bill makes it a felony in the state for a physician to use his own sperm to inseminate a patient without her consent, or to use the reproductive material of others without the genetic provider’s consent. It’s surprising that this isn’t already the law! But to date, despite the fact that this kind of medical misconduct is unquestionably unethical, and not to mention gross, it is arguably not illegal.

The bill comes on the heels of an epidemic of discoveries — both in the U.S. and abroad — that many obstetricians and fertility doctors used their own sperm to inseminate their patients. At the time, they generally told their patients that they were using donated sperm from medical students, or other people who were unknown to the patient. Of course, prior to advances in DNA testing, these doctors where pretty confident that they could never be caught. And I have previously written on the hesitation of courts to find such doctors guilty of a crime or civilly liable.

Why Indiana?

Indiana had its own bad doctor scandal in Dr. Donald L. Cline. DNA tests revealed that a daughter of his prior patient was genetically related to Cline. Even more, a number of children who had been born to other patients of Cline turned up to be … biologically related to Cline. The parents of each of these children (now adults) had sought Cline’s care and had been told that he would be using sperm anonymously donated by medical students, and, in no case using the same donor’s sperm for more than three couples. That was, of course, factually incorrect. It is not clear how many biological children Cline has, but he told at least one of his biological children that he had felt pressured to use his own sperm when donor sperm was not available, and that he had “donated” his own material for his patients 50 times.

That’s Bad. But It Gets Worse.

So what crime was Cline charged with under current law? If you guessed obstruction of justice, well, wow, that’s surprising by you. Good job guessing! Because that isn’t what most people would think. But it’s sort of like convicting Al Capone on tax evasion. Because when investigators questioned Cline about all of the children who were related to him, he emphatically denied that he ever used his own sperm, and claimed that the woman accusing him of doing so was slandering him. Naturally, the DNA evidence established that Cline lied to law enforcement, so Cline was charged and pleaded guilty to obstruction of justice for lying to investigators about his sperm-switching tactics. But because there was no other law at play (or at least none that prosecutors felt inclined to rely on), Cline was not charged for any crime for his actions lying to patients and using his own sperm in their medical procedures. In other words, if he hadn’t lied to investigators — and just openly admitted the terrible truth — then maybe they would not have found him to have acted in any criminal way.

The Fix.

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SB 239 appropriately provides that it is a felony for a doctor to use his own sperm without his patient’s consent. The bill also says, in covering all of the bases and in the spirit of equality, that if a doctor uses her own ovum without a patient’s consent, that too would be a felony. But practically speaking, I’ll tell you that surreptitiously using an ovum is highly unlikely. To retrieve and donate eggs, a woman has to go through weeks of hormone injections and then a medical procedure, generally done under sedation, where the ova are retrieved through a long needle piercing the vaginal wall. A doctor would need both a serious commitment and a co-conspirator to make that happen. While sperm retrieval, well, that’s pretty simple. No need for needles or sedation.

In addition to making fertility fraud a felony, SB 239 provides for a civil cause of action as well, allowing victims to recover actual damages or liquidated damages of $10,000.  So that’s good news at least. Although I would have made the liquidated damages amount significantly higher.

SOLs.

Another key component of SB239 is the proposal that such claims not be barred by standard short statutes of limitation. Instead, prosecution is not barred until “five (5) years after the earliest of the date on which: (1) the state first discovers evidence sufficient to charge the offender with the offense through DNA analysis; (2) the state first becomes aware of the existence of a recording that provides evidence sufficient to charge the offender with the offense; or (3) a person confesses to the offense.”

And on the civil side, the statute of limitations for “civil fertility fraud” does not toll until 10 years after the 18th birthday of the child, or not later than five years after the earliest of the date on which: (1) the person first discovers evidence sufficient to bring an action against the defendant through DNA analysis; (2) the person first becomes aware of the existence of a recording that provides evidence sufficient to bring an action against the defendant; or (3) the defendant confesses to the offense. These long time frames are critical because medical malpractice statutes of limitations often otherwise bar a claim by many of the victims of this type of violation.

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It is unlikely that any obstetrician or fertility doctor is engaging in this type of heinous behavior today. DNA testing is too prevalent, and it would just be too easy to get caught. But the fact that this wasn’t already a law, that is shocking. I applaud Indiana for taking steps to send a clear message that fertility fraud will neither be tolerated nor allowed to slip through the legal cracks.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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